By: William Nash

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With an increasing amount of state’s legislatures legalizing and decriminalizing recreational marijuana usage, there have been a multitude of secondhand legal issues that have arisen from such legislation. One of these secondhand issues is the enforcement and prevention of persons driving a motor vehicle while under the influence of marijuana. Until recently, the issue of driving under the influence of marijuana, while a concern, wasn’t as much of a critical issue because driving under the influence of marijuana fell under the broader category of possessing or being under the influence of an illicit drug.[1]

The issue of marijuana consumers driving under the influence is particularly concerning because of the popularity of the drug within the younger generation, a generation that accounts for a “disproportion share of traffic accidents” in the United States.[2] Marijuana has adverse effects on concentration as well as motor skills, which poses an obvious threat to one’s ability to drive while under the influence of marijuana.[3] While studies have not arrived at some of the specifics regarding motor vehicles and marijuana, there has been conclusive evidence that being under the influence of marijuana while driving increases your risk of being in an accident, specifically fatal ones.[4]

Studies have been conducted on states that have legalized recreational marijuana usage and its effect on motor vehicle accidents, but the studies have been relatively inconclusive.[5] Regardless of legalization’s effect, the issue poses a new question: detection. The legalization of marijuana has been a heavily debated topic in the state of New Jersey recently, one of the main arguments against being the lack of means for enforcement as well as an upkeep of safety.[6] New Jersey Senator Gerald Cardinale, who opposes legalization, claimed enforcement would be difficult because “there is no Breathalyzer for marijuana.”[7]

What Cardinale is unaware of is that Hound Labs, a breath technology company from Oakland, California, as well as other companies and researchers, have released just that: a marijuana breathalyzer.[8] Hound Lab’s breathalyzer can detect if a person has used marijuana in any form within the past 2 hours, as well as being able to conduct the standard alcohol detection that regular breathalyzers perform.[9] This two hour window the breathalyzer detects is representative of a person’s “peak window of impairment” after using marijuana.[10]

Hound Labs has raised over 30 million dollars dedicated to achieving their goal of creating this breathalyzer.[11] Creating this kind of technology has not been an easy feat for any company. Creating the necessary sensitivity to detect THC, the main compound in marijuana, is far more difficult than detecting alcohol.[12] Putting things in perspective, it takes approximately a billion times the sensitivity needed to detect alcohol to detect THC.[13]

While Hound Labs testifies that their “two hour” approach is beneficial because it detects how recently a patron has used marijuana, this approach also has multiple critiques.[14] The device reacts to a low use the same way it responds to a large amount of use, it only works in detecting if marijuana has been used within 2 hours regardless the quantity.[15] Without a quantitative measurement, there’s an immediate risk of someone receiving a driving while impaired charge for smoking the equivalent of “half a beer.” [16]

This “half a beer” issue is especially concerning regarding the increased amount of patrons who use marijuana for medical reasons.[17] Frequently, people who are prescribed or instructed to use marijuana for medical treatment take very small doses for their medical conditions.[18] Being criminally liable for using a relatively low amount of marijuana, which would have little to no effect on one’s cognitive or physical ability, would pose concerns of justice and public policy in the medical industry.[19]

Hound Labs has released the results of their own relatively limited field tests which have proved in favor of the device, but outside sources are more skeptical.[20] As a whole we are still waiting on more released data and outside tests on Hound Lab’s device, as well as other devices similar to it.[21] Before such devices become a part of law enforcement, Kevin Davis, the assistant chief of the California Highway Patrol Enforcement and Planning Division claims that the device needs to be “more accepted in the scientific community.”[22]

 

 

[1] See Paul J. Larkin, Jr., Article: Medical or Recreational Marijuana and Drugged Driving, 52 Am. Crim. L. Rev. 453, 457 (2015).

[2] Id.

[3] Id. at 474-76.

[4] Id. at 477.

[5] Id. at 471.

[6] See Matthew Nesto, NJ Dems Reach Deal On Pot Bill; Vote May Come In Weeks, law360 (Mar. 12, 2019, 6:00 PM), https://www.law360.com/tax-authority/articles/1137838/nj-dems-reach-deal-on-pot-bill-vote-may-come-in-weeks.

[7] Id.

[8] See Cheryl Miller, Higher Law: Watch This Colorado Patent Case | A Prosecutor’s Salty Take on Marijuana | Plus: New Lobbying, and Who Got the Work, law.com (Aug. 9, 2018, 4:00 PM), https://www.law.com/2018/08/09/higher-law-watch-this-colorado-patent-case-a-prosecutors-salty-take-on-marijuana-plus-new-lobbying-and-who-got-the-work/?slreturn=20190918072006; see also Ashley May, Stanford Engineers Develop Roadside Marijuana Test, USA Today (Sep. 9, 2016, 9:44 AM), https://www.usatoday.com/story/news/nation-now/2016/09/09/stanford-engineers-develop-roadside-marijuana-test/90043312/.

[9] See Lilly Price, Marijuana Breathalyzer Aims to Detect High Drivers ‘Without Unjustly Accusing’, USA Today (Aug. 7, 2019, 8:22 AM), https://www.usatoday.com/story/news/nation-now/2018/08/07/pot-breathalyzers-hound-labs-marijuana/912705002/.

[10] Id.

[11] See Mike Plaisance, Q&A as California Manufacturer Develops Marijuana Breathalyzer, Masslive (2019), https://www.masslive.com/news/erry-2018/09/51f3811b5f7893/qa-as-california-manufacturer.html.

[12] Id.

[13] Id.

[14] Id.; Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[15] Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] See Mike Plaisance, Q&A as California Manufacturer Develops Marijuana Breathalyzer, Masslive (2019), https://www.masslive.com/news/erry-2018/09/51f3811b5f7893/qa-as-california-manufacturer.html;

Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[21] Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[22] Cheryl Miller, Higher Law: Watch This Colorado Patent Case | A Prosecutor’s Salty Take on Marijuana | Plus: New Lobbying, and Who Got the Work, law.com (Aug. 9, 2018, 4:00 PM), https://www.law.com/2018/08/09/higher-law-watch-this-colorado-patent-case-a-prosecutors-salty-take-on-marijuana-plus-new-lobbying-and-who-got-the-work/?slreturn=20190918072006.

 

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